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Feed It to the Ocean: The Federal Approach to Decommissioning in Alaska Native Climate Adaptation Projects
No full textThis Note calls on the Council on Environmental Quality (CEQ) to issue guidance clarifying that concurrent decommissioning is an in-scope “connected action” under the National Environmental Policy Act for relocation, managed retreat, and protect-in-place projects aimed at replacing infrastructure in environmentally threatened Alaska Native communities. In 2018, the Denali Commission completed the Final Environmental Impact Statement for Alaska’s first community-driven village relocation of the millennium, facilitating construction of essential infrastructure at Mertarvik, the relocation site for the village of Newtok. However, the Denali Commission chose to exclude a full-scale decommissioning plan for Newtok’s existing infrastructure. Today, more than seventy-three Alaska Native villages face unprecedented severe threats from flooding, erosion, permafrost degradation, and the combined effects of each. The Denali Commission’s segmented approach to decommissioning exposed critical gaps in interagency coordination, tribal consultation, and funding priorities. It set a dangerous precedent for similar at-risk communities facing toxic pollution of water and subsistence resources. As tribal organizations and federal agencies work to protect these communities from environmental threats and historic inequities, CEQ guidance on decommissioning is more pressing now than ever
The Public Rule of Law
No full textAcross the globe, residents of many democracies worry that their public officials threaten the rule of law. But what, precisely, does that mean? Much of the literature on what the rule of law requires focuses on what it demands when government interacts with private parties. This article examines what I call the public rule of law, asking what the rule of law has to say about how public power is organized and exercised.
In doing so, I consider four approaches to the rule of law in a public law context. First, a rule of law problem could arise from an unlawful power grab, when a government actor seeks to exercise authority beyond what the law allows. Second, a rule of law problem could arise from a government actor\u27s attitude of indifference to legal restraints on their power. Third, a rule of law problem could exist when a legal actor, such as a judge or prosecutor, proceeds based on wrongful reasons, which is to say that they possess lawful authority but exercise that authority for a reason that either positive law or norms of political morality prohibit. Fourth, a rule of law problem could result not from officials\u27 actions but rather from constitutional structure, namely a lack of sufficient checks on public power.
Having examined what the rule of law could mean in a public law context, the article then asks whether it is a useful concept. The rule of law is useful conceptually, in that it captures a set of values that are both important and distinctive. A case study of executive disobedience of court orders shows two distinctive rule of law problems that arise from disobedience. The rule of law will sometimes also be politically potent, but not always: the concept\u27s fuzziness and the ability to make rule of law arguments on both sides of many issues are among the factors that can give the concept limited real-world power, especially under conditions of high polarization. A case study of prosecutions for apex criminality illustrates this challenge, given the frequent invocations of the rule of law on both sides of such prosecutions. Nonetheless, understanding the multiple dimensions of the rule of law can guide institutional designers in seeking to enable governance that vindicates the rule of law while reducing the likelihood of governance that threatens it
History and Tradition as Heightened Scrutiny
No full textThe Supreme Court is turning to methodologies privileging text, history, and tradition, or THT, to interpret and implement various constitutional provisions. The Court has recently endorsed historically-focused approaches to determine how the Second Amendment protects the right to keep and carry a firearm, how the First Amendment protects the rights to free speech and freedom of religion, and whether the Due Process Clause protects reproductive autonomy, among other questions.
Much scholarship and popular commentary surrounding THT portrays the methodology as sui generis: presenting unique analytical challenges and impervious to direct comparison to existing doctrinal approaches. However, the jurist most frequently credited with deriving THT for Second Amendment cases, then-Circuit-Judge Brett Kavanaugh, offered a prediction about the test’s relative burden at that time. He wrote that “governments appear to have more flexibility and power to impose gun regulations under a test based on text, history, and tradition than under strict scrutiny.”
The past two years of Second Amendment case law following the Court’s adoption of THT in the 2022 case NYSRPA v. Bruen offer the first opportunity to test the accuracy of this prediction and weigh the strictness of THT against strict scrutiny in specific areas. By comparing pre-Bruen decisions that used or speculated about the application of strict scrutiny to decisions applying THT to the same gun laws, I make two major findings for the Second Amendment and other areas where historically-inflected methodologies are on the rise. First, I show that results on the ground deviate from initial predictions and that courts have drifted by applying a stricter test. Second, I argue that the Court’s decision this past Term in United States v. Rahimi is best understood as attempting to slot THT into its intended place on the means-end-scrutiny spectrum, demonstrating that some early decisions mis-applied the doctrine and suggesting the staying power of tiered scrutiny as a judicial guide across constitutional law
Countering the Demand Side of Foreign Bribery: An Analysis of the Foreign Extortion Prevention Act
No full textThe United States has long criminalized bribery of foreign officials but not bribery by foreign officials. Under the Foreign Corrupt Practices Act ( FCPA ), an American may be criminally liable for paying a bribe to another country\u27s official, but the official commits no corresponding crime. The official might face criminal charges if they launder the proceeds of the bribe through the United States and could find themselves the target of Executive Branch sanctions for their corrupt behavior. But until 2023, the United States largely left the official\u27s punishment, if any, to the official\u27s home country. Then, Congress passed the Foreign Extortion Prevention Act ( FEPA ), which, under certain circumstances, directly criminalizes bribery by foreign officials. This Note evaluates the FEPA. It concludes that the FEPA represents a step change in U.S. efforts to counter foreign bribery, but the statute\u27s extraterritorial reach may exceed its grasp
Fair Notice Is a Sociopolitical Choice
Full text linkThis Article reframes a deadlocked debate about “fair notice” as a justification for statutory interpretation methods by developing a historical account of a crucial, overlooked dimension: legislatures’ and laypeople’s value judgments about notice. On one side of the debate are idealists who contend, on due process grounds, that judges should embrace interpretive methods and theories based on how well they promote fair notice. On the other side are realists who counter, on empirical grounds, that perfect notice is impossible. Each side continues to talk past the other because we lack a fleshed-out framework for evaluating when the fair-notice basis of a given interpretive method or theory is sufficient or superior to that of others. In the vast terrain of this debate beyond the contexts of the rule of lenity and the void-for-vagueness doctrine, the stalemate has left critical questions undertheorized: Given notice’s real-world costs and limits, how much notice is “enough” for judges to promote through statutory interpretation, and why should judges promote more than enough, less than enough, or just enough notice?
The Article uncovers two features of notice with the goal of developing a vocabulary that can be used to resolve the impasse on normative grounds. First, legislatures and laypeople are always in the background making choices about what constitutes “good” or “fair” notice, and, most importantly, they influence how different forms and costs of notice are distributed across different segments of society. Second, these choices have produced deep societal inequalities of notice. Two major transformations in the history of fair notice illuminate these features. First, legislatures made notice fictional by prioritizing a distribution of notice that was “efficient” rather than audience neutral, redistributive, or notice maximizing. Second, and in tension with the conventional idea that laypeople are inherently notice-phobic, laypeople once developed a mass political culture—eventually abandoned by the early twentieth century—that involved reading not just statutes but also legislative history.
From this history, the Article ultimately argues that because nonjudicial choices pertaining to notice are always in the backdrop of judicial invocations of fair notice in statutory interpretation, judges who want to embrace fair notice need to have a theory of whether and how to account for these choices—especially choices influencing the distribution of notice across society. While this Article leaves for another time the task of resolving how exactly judges should account for these choices, it preliminarily sketches two potential approaches. It first traces out a hands-off approach that is guided by judicial restraint and that reflects the choices of legislatures (and the choices of the people vis-à-vis legislatures). Second, and in the alternative, it traces out a law-and-political-economy approach to imagining a world of “enough” notice.
Finally, the Article explains how the history of notice offers two interventions for the methodology of evaluating fair notice. First, the history can help scholars better determine what constitutes “good” or “fair” notice by revealing the range of possibilities—and limits—of notice. Second, the history demonstrates how fair notice has been contingent on changing historical circumstances, which calls into question the long-term stability of fair notice in statutory interpretation theory
Patent Monopsonies
No full textConventional wisdom perceives patent protection as a necessary evil. Patent protection, the argument goes, raises the prices of patented products and processes, thus restricting access to innovation. But without it, not enough innovation will be produced. Hence, generations of scholars have sought ways to curb the market power of patentees via various legal interventions, such as prizes, compulsory licenses, and other forms of regulation. All have tacitly assumed that eroding the market power of patentees would result in a competitive market for innovation that would put an end to the allocative inefficiencies and distributional inequities that emanate from patent protection.
The present Article sets out to challenge the accepted understanding of innovation, showing that patentholders ordinarily operate in markets of monopsonistic nature, namely, markets characterized by a single purchaser or a highly concentrated demand side. Crucially, this finding involves the most prominent patent-inhabiting industries, including pharmaceuticals, agriculture and biotechnologies, defense technologies, infrastructural equipment and other sectors. The existence of monopsonies in markets for patented technologies implies that commentators have thus far overlooked the actual structure of the marketplace for patents, which routinely features a bilateral monopoly: a single seller along with a single buyer. After highlighting this phenomenon and assessing its pervasiveness, this Article introduces a blueprint for analyzing patent monopsonies. It shows that under extant market structure, the monopsonistic counterforces may reinstate competitive pricing of inventions, whereas in other cases, the presence of patent monopsonies might prove disadvantageous to society at large.
The new market picture this Article portrays gives rise to several important policy implications. First, it shows that the high prices consumers pay in some industrial sectors are due to the existence of monopsonies, not patents. Second, in contrast with conventional wisdom, it counsels against the use of compulsory licenses in monopsonistic industries because they reduce innovation without generating any real benefits to consumers. Third, it demonstrates that the existence of monopsonies is a core reason for suppression, non-commercialization, and distortion of innovation. It also discusses legal interventions that can help alleviate this problem
